United States District Court, E.D. Michigan, Northern Division
ORDER OVERRULING IN PART AND SUSTAINING IN PART
OBJECTIONS, AND CORRECTING CLERICAL ERROR
L. LUDINGTON United States District Judge
David and William Raub are brothers who own two parcels of
property in the Moon Lake Resort in Greenwood Township,
Michigan, located in Oscoda County. On October 5, 2005
Plaintiffs filed a ten-count complaint against Defendants
Moon Lake Property Owners' Association, Linda Argue, and
Thomas McCauley (the “Moon Lake Defendants”),
Greenwood Township, James Hervilla, Fred Lindsey, and Larry
Mathias, (the “Township Defendants”) and Oscoda
County and Tim Whiting (the “County Defendants”)
asserting the following counts: 1)
in violation of 42 U.S.C. § 1983; 2) retaliation in
violation of 42 U.S.C. § 1983; 3) abuse of process in
violation of 42 U.S.C. § 1983; 4) violation of First
Amendment rights in violation of 42 U.S.C. § 1983; 5)
violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et seq;
6) violation of Michigan's Elliott-Larsen Civil Rights
Act (“ELCRA”); 7) violation of the Marketable
Record Title Act, Mich. Compl. Laws § 565.101; 8)
violation of the Michigan Persons with Disabilities Civil
Rights Act (“MPWDCRA”), Mich. Comp. Laws §
37.1302; 9) violation of the MPWDCRA, Mich. Comp. Laws §
37.1602; and 10) violation of StilleDerosesett-Hale Single
State Construction Code Act. See Compl., ECF No. 1.
Plaintiffs allege that after protesting that a pool within
the Moon Lake Resort was not ADA compliant, Defendants
conspired to “launch a multi-front campaign to
squelch the Raub's advocacy in the ADA Compliance
dispute.” Compl. ¶ 2. As a part of this
conspiracy, Defendants allegedly enforced blight ordinances
against Plaintiffs, filed a lien on Plaintiffs' property
for non-payment of $45 in annual dues, upon which Defendants
subsequently obtained a default judgment, and filed a
nuisance lawsuit against Plaintiffs in state court. Compl.
case was reassigned to this Court on April 8, 2016.
See ECF No. 18. Following a scheduling conference on
May 17, 2016, a scheduling order was entered on May 18, 2016.
See ECF No. 22. The matter was then referred to
Magistrate Judge Patricia T. Morris for pretrial matters on
July 6, 2016. See ECF No. 28.
5, 2016 the Township Defendants filed a motion for a
protective order, seeking to strike certain of
Plaintiffs' document productions requests and
interrogatories as irrelevant and not proportional to the
case. See ECF No. 27. On July 15, 2016 the County
Defendants similarly moved for a protective order.
See ECF No. 31. Then, on July 25, 2016 the Moon Lake
Defendants filed a motion for a protective order seeking to
strike similar document productions requests and
interrogatories as irrelevant and not proportional to the
case. In each case, Plaintiffs sought to discover all
computer hard drives, telephone logs, emails, GPS data, IP
addresses, photos/videos, calendars, contacts, documents,
bookmarks, device settings, app data, text messages,
voicemail, device PIN numbers, backup data, and billing
statements of the County, Township, and Association for the
past 10 years, and the computer and email passwords of all
individual users. Plaintiffs sought the same discovery from
the individual Defendants, seeking to discover the hard
drives, emails, and passwords for Defendants' personal
computers and their phone records and text messages for the
past 10 years.
response, on August 1, 2016 Plaintiffs filed a motion to
compel the production of certain insurance policies, on-site
inspections, all requested discovery, and billing addresses
and phone numbers in order to obtain third-party subpoenas to
Verizon, Sprint, AT&T, and T-Mobile. See ECF No.
37. Plaintiffs further requested that Defendants' motions
be denied as untimely. Id. Finally, on August 5,
2016 the County Defendants filed a motion to compel the
depositions of Plaintiffs based on representations by Counsel
that the Plaintiffs would not be available until October.
See ECF No. 40.
magistrate judge held a hearing on all pending motions on
August 15, 2016, which lasted two and a half hours.
Thereafter, on August 17, 2016 the magistrate judge issued an
order granting Defendants' motions for protective orders,
denying Plaintiff's motions to compel, and granting in
part the County Defendants' motion to compel depositions.
See ECF No. 46. Plaintiffs then timely filed
objections. See ECF Nos. 47, 48.
October 12, 2016 Plaintiffs filed notice that they had
accepted the County Defendants' offer of judgment
pursuant to Federal Rule of Civil Procedure 68(a).
See ECF No. 52. Judgment has therefore been entered
against Defendants Oscoda County and Tim Whiting.
See ECF No. 54. The objections as they relate to the
County Defendants will therefore be disregarded as moot.
decision and order of a non-dispositive motion by a
magistrate judge will be upheld unless it is clearly
erroneous or contrary to law. See 28 U.S.C. §
636(b)(1)(A); Fed.R.Civ.P. 72(a); Massey v. City of
Ferndale, 7 F.3d 506, 509 (6th Cir. 1993). A district
judge shall consider such objections and may modify or set
aside any portion of the magistrate judge's order found
to be clearly erroneous or contrary to law. Fed.R.Civ.P.
72(a). “The ‘clearly erroneous' standard
applies only to the magistrate judge's factual findings;
legal conclusions are reviewed under the plenary
‘contrary to law' standard . . . . Therefore, [the
reviewing court] must exercise independent judgment with
respect to the magistrate judge's conclusions of
law.” Haworth, Inc. v. Herman Miller, Inc.,
162 F.R.D. 289, 291 (W.D. Mich. 1995) (citing Gandee v.
Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992)).
“An order is contrary to law when it fails to apply or
misapplies relevant statutes, case law, or rules of
procedure.” Ford Motor Co. v. United States,
2009 WL 2922875, at *1 (E.D. Mich. Sept. 9, 2009)).
their first objection Plaintiffs argue that the magistrate
judge erred in finding that Defendants did not waive their
ability to object to Plaintiffs' discovery requests by
filing untimely responses. Federal Rule of Civil Procedure
26(b)(1), as effective on December 1, 2015, governs the scope
of discovery in civil cases:
Unless otherwise limited by court order, the scope of
discovery is as follows: Parties may obtain discovery
regarding any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of
the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties
relative access to relevant information, the parties'
resources, the importance of the discovery in ...